Paragraph numbers below are the court’s original numbering, recovered from the source text.
20. When we take stock of aforesaid decisions of this Court in nutshell it emerges that in Ramashanker Raghuvanshi (supra), this Court has opined that activities in Jan Sangh and RSS could not be made a ground to deprive employment. In democratic set up 'McCarthyism' is not healthy. Some leniency to young people cannot be ruled out. In T. S. Vasudavan Nair (supra), a three Judges' Co-ordinate Bench of this Court held that due to non-disclosure of conviction in a case of violation of Defence of India Rules by shouting slogans, the cancellation of appointment was illegal. In Dhaval Singh (supra), though pendency of case was suppressed when verification form was filed, however, the information about it was furnished before cancellation of appointment order on the ground of suppression was passed. This Court set aside the order on the ground of non-consideration of effect of disclosure made before order of cancellation of appointment was passed. In Sandeep Kumar (supra), this Court in the backdrop fact of the case that offence suppressed was committed under section 325/34 IPC at the time when incumbent was 20 years of age. This Court held that young people to be dealt with leniency. They should not be deprived of appointment as suppression did not relate to involvement in a serious case. In Ram Kumar (supra), this Court considered a case when pending criminal case under sections 324, 323, 504 IPC in which subsequently acquittal had been recorded, no overt act was attributed by sole witness to incumbent and moreover Government instructions dated 28.4.1958 requiring authority to consider suitability as such was not complied with, denying back wages to incumbent, his appointment was ordered. In Regional Manager. Bank of Baroda (supra), this Court declined to interfere under Art.136 in view of subsequent acquittal in a case under section 307 IPC. The decision of Labour Court was not interfered with. Passage of time was taken into consideration. However, this Court clarified that decision will not be treated as precedent. In Kamal Nayan Mishra (supra), action was taken when employee was not on probation. He had been confirmed in service and was holding civil post, attestation was filled after 14 years of service and then after 7 years of that, action was taken. It was held that confirmed employee could not have been removed in view of protection under Art.311(2) without enquiry. Removal was held to be void. ln M Bhaskaran (supra), it was held that when the employment was taken on bogus and forged casual labourer service card no estoppel was created c c [2016) 7 S.C.R. against employer by appointment and such appointment was voidable. In Sushi! Kumar (supra), on consideration of background facts of the pending case which was suppressed under sections 304, 324/34 and 324 IPC, it was held not desirable to appoint incumbent notwithstanding his subsequent acquittal. In Ram Ratan Yadav (supra), this Court held that suppression of pending criminal case under sections 323, 341, 294, 5068/ 34 IPC on the date of filing attestation form coupled with impact of it on students, nature of employment, the discretion exercised to terminate the services was upheld. In R. Radhakrish11a11 (supra) in which pendency of criminal case under section 294(b) IPC was suppressed relying on Sushi/ Kumar (supra), it was held that removal was legal. In Bipad Bhanjan Gayen (supra), there was suppression of two pending cases on the date of filing verification fonn under sections 376 IPC and 417 IPC relating to rape and cheating. It was observed that since antecedents were not good incumbent could not claim equity for appointment. In Daya Shankar Yadav (supra), this Court has laid down course of action to be taken in such cases, and that suppression by itself can be a ground to remove person from service or cancel an appointment, notwithstanding acquittal in the criminal case. In SKNazrul Islam (supra), due to suppression of pending case on the date of filing of form under sections 148, 323, 380, 427, 596 IPC incumbent was adjudged to be unsuitable for appointment. This Court has also opined that before a. person is held guilty of suppression of a fact it has to be considered whether verification form is precise and is not vague, and what it required to disclose. In Daya Shankar (supra) it was held that in case verification form is vague no fault can be found on the ground of suppression .. However, facts which have come to knowledge it has to be determined by employer whether antecedents of incumbent are good for service, to hold someone guilty of suppression, query in the form has to be specific. Similarly, in B. Chinnam Naidu (supra) when column in verification form required to disclose detention or conviction, it did not require to disclose a pending criminal case or fact of arrest, removal on the ground of material suppression of pending case and arrest was set aside as that was not required to be disclosed.
21. The verification of antecedents is necessary to find out fitness of incumbent, in the process if a declarant is found to be of good moral character on due verification of antecedents, merely by suppression of A VTAR SINGH v. UNION OF INDIA & ORS. [ARUN MISHRA, J.] involvement in trivial offence which was not pending on date of filling attestation form, whether he may be deprived of employment? There may be case of involving moral turpitude/serious offence in which employee has been acquitted but due to technical reasons or giving benefit of doubt. There may be situation when person has been convicted of an offence before filling verification form or case is pending and information regarding it has been suppressed, whether employer should wait till outcome of pending criminal case to take a decision or in case when action has been initiated there is already conclusion o.f criminal case resulting in conviction/acquittal as the case may be. The situation may arise for consideration of various aspects in a case where disclosure has been made truthfully of required information, then also authority is required to consider and verify fitness for appointment. Similarly in case of suppression also, ifin the process of verification of information, certain information comes to notice then also employer is required to take a decision considering various aspects before holding incumbent as unfit. If on verification of antecedents a person is found fit at the same time authority has to consider effect of suppression of a fact that he was tried for trivial offence which does not render him unfit, what importance to be attached to such non-disclosure. Can there be single yardstick to deal with all kind of cases?
22. The employer is given 'discretion' to terminate or otherwise to condone the omission. Even otherwise, once employer has the power to take a decision when at the time of filling verification form declarant has already been convicted/acquitted, in such a case, it becomes obvious that all the facts and attending circumstances, including impact of suppression or false information are taken into consideration while adjudging suitability of an incumbent for services in question. In case the employer come to the conclusion that suppression is immaterial and even if facts would have been disclosed would not have affected adversely fitness of an incumbent, for reasons to be recorded, it has power to condone the lapse. However, while doing so employer has to act prudently on due consideration of nature of post and duties to be rendered. For higher officials/higher posts, standard has to be very high and even slightest false information or suppression may by itself render a person unsuitable for the post. However same standard cannot be applied to each and every post. In concluded criminal cases, it has to be seen what has been suppressed is material fact and would have rendered an incumbent unfit c c (2016] 7 S.C.R. for appointment. An employer would be justified in not appointing or if appointed to terminate services of such incumbent on due consideration of various aspects. Even if disclosure has been made truthfully the employer has the right to consider fitness and while doing so effect of conviction and background facts of case, nature of offence etc. have to be considered. Even if acquittal has been made, employer may consider nature of offence, whether acquittal is honourable or giving benefit of doubt on technical reasons and decline to appoint a person who is unfit or dubious character. In case employer comes to conclusion that conviction or ground of acquittal in criminal case would not affect the fitness for employment incumbent may be appointed or continued in service.
23. Coming to the question whether an employee on probation can be discharged/refused appointment though he has been acquitted of the charge/s, if his case was not pending when form was filled, in such matters, employer is bound to consider grounds of acquittal and various other aspects, overall conduct of employee including the accusations which have been levelled. If on verification, the antecedents are otherwise also not found good, and in number of cases incumbent is involved then notwithstanding acquittals in a case/cases, it would be open to the employer to form opinion as to fitness on the basis of material on record. · In case offence is petty in nature committed at young age, such as stealing a bread, shouting of slogans or is such which does not involve moral turpitude, cheating, misappropriation etc. or otherwise not a serious or heinous offence and accused has been acquitted in such a case when verification form is filled, employer may ignore lapse of suppression or submitting false information in appropriate cases on due consideration of various aspects.
24. No doubt about it that once verification form requires certain information to be furnished, declarant is duty bound to furnish it correctly and any suppression of material facts or submitting false information, may by itself lead to termination of his services or cancellation of candidature in an appropriate case. However, in a criminal case incumbent has not been acquitted and case is pending trial, employer may well be justified in not appointing such an incumbent or in terminating the services as conviction ultimately may render him unsuitable for job and employer is not supposed to wait till outcome of criminal case. In such a case non disclosure or submitting false information would assume significance A VTAR SINGH v. UNION OF INDIA & ORS. [ARUN MISHRA, J.] and that by itself may be ground for employer to cancel candidature or to terminate services.
25. The fraud and misrepresentation vitiates a transaction and in case employment has been obtained on the basis of forged documents, as observed in M Bhaskaran's case (supra), it has also been observed in the reference order that if an appointment was procured fraudulently, the incumbent may be terminated without holding any inquiry, however we add a rider that in case employee is confirmed, holding a civil post and has protection of Article 311 (2), due inquiry has to be held before terminating the services. The case ofobtaining appointment on the basis of forged documents has the effect on very eligibility of incumbent for the job in question, however, verification of antecedents is different aspect as to his fitness otherwise for the post in question. The fraudulently obtained appointment orders are voidable at the option of employer, however, question has to be determined in the light of the discussion made in this order on impact of suppression or submission of false information.
26. No doubt about it that verification of character and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant c aspects.
27. Suppression of 'material' information presupposes that what is suppressed that 'matters' not every technical or trivial matter. The employer has to act on due consideration of rules/instructions if any in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases.
28. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by concerned authorities considering post/nature of duties/services and power has to be exercised on due consideration of various aspects. c [2016) 7 S.C.R.
29. The 'McCarthyism' is antithesis to constitutional goal, chance of refonnation has to be afforded to young offenders in suitable cases, interplay of refonnative theory cannot be ruled out in toto nor can be generally applied but is one of the factors to be taken into consideration while exercising the power for cancelling candidature or discharging an employee from service.
30. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus: I . Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required infonnation. 2. While passing order of tennination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information. 3. The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision. 4. In case there is suppression or false information ofinvolvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted:- a. In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such· suppression of fact or false information by condoning the lapse. b. Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee. AVTAR SINGH v. UNION OF INDIA & ORS. [ARUN MISHRA, J.] c. If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee. (5) In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate. (6) Jn case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case. (7) In a case of deliberate suppression of fact with respect to multiple pending cases such 'false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper. (8) If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime. (9) In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form. (10) For determining suppression or false information attestation/ verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. lfinformation not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question c c (2016] 7 S.C.R. of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for. (11 )Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him. We answer the reference accordingly. Let the matters be placed before an appropriate Bench for consideration on merits. Devika Gujral Referred issues answered.